DIRECTOR OF PUBLIC PROSECUTIONS v ELIATOSHA MOSHA AND ANOTHER 1984 TLR 28 (CA)

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DIRECTOR OF PUBLIC PROSECUTIONS v ELIATOSHA MOSHA AND ANOTHER 1984 TLR 28 (CA)

Court Court of Appeal of Tanzania - Mwanza
Judge Nyalali CJ, Mustafa JJA and Kisanga JJA


November 28, 1984
CRIMINAL APPEAL 24 OF 1983  B  
Labour Law - Employment Ordinance - Complainant driving and keeping respondent's taxi and retaining 20% of earnings - Whether relationship of Employer and employee existed to attract prosecution for breaches of the Employment Ordinance.  C  
[zHNz] Headnote
This is a second appeal by the Director of Public Prosecutions and it concerns a case in which the respondents were charged in the District Court at Mwanza for breaches of certain provisions of the Employment Ordinance, Cap. 366, and the Regulation of Wages and Terms of Employment  D  Ordinance, Cap. 300 and the Workmen's Compensation Ordinance, Cap. 263. Detailed facts appear in the judgment.
Held: To enable the court to decide satisfactorily whether, on the facts, there existed in law a  E  relationship of employer and employee it was necessary to adduce evidence to show the degree of control that the respondents had over the driver and the motor vehicle, responsibility for maintenance of the taxi and how the earnings were determined or controlled.  F  
[zCIz]Case Information
Appeal dismissed.
Case referred to:
1. Market Investigations Ltd. v Minister for Social Security [1969]  2 W.L.R. 1.  G  
Mtaki for the appellant
Rugarabamu for the respondent  H  
[zJDz]Judgment
Nyalali, C.J.: This is a second appeal by the Director of Public Prosecutions and it concerns a case in which the two respondents namely, Eliatosha Mosha and Denis Mrema were charged in the District Court at Mwanza on four counts, that is:  I  
1984 TLR p29
NYALALI CJ
  A   (1)  Failure to prepare and maintain a contract of service - contrary to section 35(1) (2) and (3) of the Employment Ordinance - Cap. 336 - in the first count;
(2)  Failure to keep a record of wages - contrary to section 17(1) of the Regulation of Wages and Terms of  B  Employment Ordinance - Cap. 300 - in the second count;
(3)  Failure to insure themselves in respect of liability to their employees - contrary to section 25(1) and (2) of the Workmen's Compensation Ordinance - Cap. 263; and
  C   (4)  Failure to pay statutory minimum wages - contrary to section 12 of the Regulation of Wages and Terms of Employment Ordinance - Cap. 300.
They were acquitted on all counts at the trial. The Director of Public Prosecutions was aggrieved by that decision and appealed to the High Court. The appeal was dismissed in its entirety, hence this   D appeal to this Court.
It was found by the two courts below that the respondents owned a number of motor vehicles which were used in taxi business in Mwanza township;  that one Mwinyasumba Mrema (P.W.1) was one of   E the drivers of these taxis for a period of seven years. He used to keep the taxi at his home and he was paid a 20% commission on the taxi earnings. The remainder of the earnings was taken by the respondents. In August 1980 P.W.1 ceased to drive any of the respondents' vehicles apparently as a result of some misunderstandings.
  F It is the prosecution case that P.W. 1 was employed by the respondents throughout the period and was therefore covered by the relevant provisions of the Employment Ordinance, the Workmen's Compensation Ordinance, and the Regulation of Wages and Terms of Employment Ordinance, which   G were the subject of the charges at the trial. The respondents denied that there existed a relationship of employer and employee between them and P.W. 1 and that the latter operated as an independent contractor under a special business arrangement between him and the respondents.
  H The crucial point, as correctly realised by both the two courts below, is whether there was a relationship of employer and employee between the respondents and P.W.1. Unfortunately, as noted by the first appellate judge, the prosecution was poorly handled at the trial with the result that there was a failure to adduce crucial evidence which would have enabled the court to decide the main   I issue satisfactorily. Mr. Mtaki, learned State Attorney who appeared on behalf of the Director of Public Prosecutions, conceded that there 
1984 TLR p30
NYALALI CJ
was such mishandling of the prosecution case. For instance, no evidence was adduced to show the  A  degree of control that the respondents had over the motor vehicle or P.W.1; similarly, no evidence was adduced concerning which party was responsible for the maintenance of the taxi; no attempt was made to lead evidence on how the earnings were determined or controlled. Such and like  B  evidence was necessary to enable the court to decide satisfactorily whether on the facts, there existed in law a relationship of employer and employee.
Mr. Mtaki, learned State Attorney, and Mr. Rugarabamu learned advocate who appeared for the respondents, have cited an authority concerning the relationship which in law amounts to the  C  relationship of employer and employee. This is the case of Market Investigations Ltd. v Minister of Social Security  [1969] 2 W.L.R.I. 
This case stipulates a number of factors which ought to be considered in deciding whether a  D  relationship of employer and employee exists in any particular case. Such factors are suggested as:
1. Control;
2. Ownership of the tools;  E  
3. Chance of profit; and
4. Risk of loss.
However, we are of the opinion that the present case is so poorly prosecuted that it lacks a number of important facts which are necessary for a conclusive statement by this Court of the relevant  F  general principles. In any case, only one of the factors stated in the Market Investigations case, that is, the factor of ownership of the tools, can be said to have been proved in the present case. It is common ground that the motor vehicle which was driven by P.W. 1 belonged to the respondents. But that factor alone does not make P.W. 1 an employee of the respondents, since the motor vehicle  G  could have been hired out to P.W.1 by the respondents. On the facts found by the two courts below, it cannot be said that P.W.1 was an employee of the respondents. The two courts below were correct in acquitting the respondents and in dismissing the first appeal.  H  
It follows that this appeal cannot succeed and we dismiss it in its entirety.  I  
 Appeal dismissed
1984 TLR p31

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